In PUD No. 1 of Jefferson County, the U.S. Supreme Court and the parties more or less assumed that discharges would be present in the construction and operation of a hydroelectric dam. However, the exact definition of “discharge” was not at issue. In 2006, the U.S. Supreme Court took up this issue, defining “discharge” for purposes of section 401 in the following case.
S.D. WARREN CO., Petitioner,
v.
MAINE BOARD OF ENVIRONMENTAL
PROTECTION et al.
--- U.S. ---, 126 S. Ct.
1843 (May 15, 2006)
Justice SOUTER
delivered the opinion of the Court.*
The issue in this case is whether operating a dam to
produce hydroelectricity “may result in any discharge into the navigable
waters” of the United States. If so, a
federal license under § 401 of the Clean Water Act requires state certification
that water protection laws will not be violated. We hold that a dam does raise a potential for
a discharge, and state approval is needed.
I
The Presumpscot River runs
through southern Maine from Sebago Lake to Casco Bay, and in the course of its
25 miles petitioner, S.D. Warren Company, operates several hydropower dams to
generate electricity for its paper mill. Each dam creates a pond, from which water
funnels into a “power canal,” through turbines, and back to the riverbed,
passing around a section of the river just below the impoundment.
It is undisputed that since 1935, Warren has needed a
license to operate the dams, currently within the authority of the Federal
Energy Regulatory Commission (FERC) under the Federal Power Act. * * *
Over 30 years ago, Congress enacted a specific
provision for licensing an activity that could cause a “discharge” into
navigable waters; a license is conditioned on a certification from the State in
which the discharge may originate that it will not violate certain water
quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, §
103, 84 Stat. 108. Today, this
requirement can be found in § 401 of the Clean Water Act, 86 Stat. 877,
codified at 33 U.S.C. § 1341:
“Any applicant for a Federal license or permit to conduct any activity . . .
which may result in any discharge into the navigable water[s] shall provide the
licensing or permitting agency a certification from the State in which the
discharge originates . . . .” § 1341(a)(1). “Any certification provided under this
section shall set forth any effluent limitations and other limitations, and
monitoring requirements necessary to assure that any applicant for a Federal
license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any
other appropriate requirement of State law set forth in such certification, and
shall become a condition on any Federal license or permit subject to the
provisions of this section.” § 1341(d).
In 1999, Warren sought to renew federal licenses for
five of its hydroelectric dams. It
applied for water quality certifications from the Maine Department of
Environmental Protection (the state agency responsible for what have come to be
known as “401 state certifications”), but it filed its application under
protest, claiming that its dams do not result in any “discharge into” the river
triggering application of § 401.
The Maine agency issued certifications that required
Warren to maintain a minimum stream flow in the bypassed portions of the river
and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams,
it did so subject to the Maine conditions, and Warren continued to deny any
need of § 401 state certification. After
appealing unsuccessfully to Maine’s administrative appeals tribunal, the Board
of Environmental Protection, Warren filed this suit in the State’s Cumberland
County Superior Court. That court
rejected Warren’s argument that its dams do not result in discharges, and the
Supreme Judicial Court of Maine affirmed.
We granted certiorari, and now affirm as well.
II
The dispute turns
on the meaning of the word “discharge,” the key to the state certification
requirement under § 401. The Act has no definition of the term, but
provides that “[t]he term ‘discharge’ when used without qualification includes
a discharge of a pollutant, and a discharge of pollutants.” 33 U.S.C. § 1362(16).
It does define “discharge of a
pollutant” and “discharge of pollutants,” as meaning “any addition of any
pollutant to navigable waters from any point source.” § 1362(12).
But “discharge” presumably is broader,
else superfluous, and since it is neither defined in the statute nor a term of
art, we are left to construe it “in accordance with its ordinary or natural
meaning.” FDIC v.
Meyer, 510 U.S.
471, 476 (1994).
When it applies to water, “discharge” commonly means
a “flowing or issuing out,” Webster's New
International Dictionary 742 (2d ed.1949); see also ibid. (“[t]o
emit; to give outlet to; to pour forth; as, the Hudson discharges its
waters into the bay”), and this ordinary sense has consistently been the
meaning intended when this Court has used the term in prior water cases.
In fact, this understanding of the word “discharge”
was accepted by all Members of the Court sitting in our only other case focused
on § 401 of the Clean Water Act, PUD No. 1 of
Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700
(1994). At issue in PUD No. 1 was
the State of Washington’s authority to impose minimum stream flow rates on a
hydroelectric dam, and in posing the question presented, the Court said this:
“There is no dispute that petitioners were required to obtain a certification from the State pursuant to § 401. Petitioners concede that, at a minimum, the project will result in two possible discharges – the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.”
The PUD No. 1 petitioners
claimed that a state condition imposing a stream flow requirement on discharges
of water from a dam exceeded the State’s § 401 authority to prevent degradation of water quality, but neither the
parties nor the Court questioned that the “discharge of water” from the dam was
a discharge within the ambit of § 401. Ibid.
And although the Court’s opinion made no
mention of the dam as adding anything to the water, the majority’s use of the
phrase “discharge of water” drew no criticism from the dissent, which
specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean
Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing
out,’ or ‘something that is emitted.’” Id.,
at 725 (opinion of THOMAS, J.) (quoting Webster’s
Ninth New Collegiate Dictionary 360 (1991)).
In resort to common usage under § 401, this Court has
not been alone, for the Environmental Protection Agency (EPA) and FERC have
each regularly read “discharge” as having its plain meaning and thus covering
releases from hydroelectric dams. Warren
is, of course, entirely correct in cautioning us that because neither the EPA
nor FERC has formally settled the definition, or even set out agency reasoning,
these expressions of agency understanding do not command deference from this
Court. But even so, the
administrative usage of “discharge” in this way confirms our understanding of
the everyday sense of the term.
III
Warren makes three principal arguments for reading
the term “discharge” differently from the ordinary way. We find none availing.
A
The first involves an interpretive canon we think is
out of place here. The canon, noscitur a sociis, reminds
us that “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U.S.
561, 575 (1995), and is invoked when a string of statutory terms
raises the implication that the “words grouped in a list should be given
related meaning,” Dole v.
Steelworkers, 494 U.S. 26,
36 (1990) (internal quotation marks omitted).
Warren claims that the canon applies to § 502(16) of
the Clean Water Act, which provides that “[t]he term ‘discharge’ when used
without qualification includes a discharge of a pollutant, and a discharge of
pollutants.” 33 U.S.C. § 1362(16). Warren emphasizes that the “include[d]”
terms, pollutant discharges, are themselves defined to require an “addition” of
pollutants to water. § 1362(12). Since “discharge” pure and simple is keeping
company with “discharge” defined as adding one or more pollutants, Warren says
“discharge” standing alone must require the addition of something foreign to
the water into which the discharge flows. And because the release of water from the dams
adds nothing to the river that was not there above the dams, Warren concludes
that water flowing out of the turbines cannot be a discharge into the river.5
The problem with Warren’s argument is that it
purports to extrapolate a common feature from what amounts to a single item
(discharge of a pollutant plus the plural variant involving more than one
pollutant). The argument seems to assume
that pairing a broad statutory term with a narrow one shrinks the broad one,
but there is no such general usage; giving one example does not convert express
inclusion into restrictive equation, and noscitur
a sociis is no help absent some sort of gathering
with a common feature to extrapolate. It
should also go without saying that uncritical use of interpretive rules is
especially risky in making sense of a complicated statute like the Clean Water
Act, where technical definitions are worked out with great effort in the
legislative process.
B
Regardless, Warren says the statute should, and even
must, be read its way, on the authority of South Fla.
Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95
(2004). But that case is not
on point. Miccosukee addressed § 402 of the Clean Water Act,
not § 401, and the two sections are not interchangeable, as they serve
different purposes and use different language to reach them. Section 401 recast pre-existing law and was
meant to “continu[e] the authority of the State . . .
to act to deny a permit and thereby prevent a Federal license or permit from
issuing to a discharge source within such State.” S. Rep. No. 92-414, p. 69 (1971).
Its terms have a broad reach, requiring
state approval any time a federally licensed activity “may” result in a
discharge (“discharge” of course being without any qualifiers here), 33 U.S.C. § 1341(a)(1),
and its object comprehends maintaining state water quality standards.
Section 402 has a historical parallel with § 401, for
the legislative record suggests that it, too, was enacted to consolidate and
ease the administration of some predecessor regulatory schemes. But it contrasts with § 401 in its more
specific focus. It establishes what
Congress called the National Pollutant Discharge Elimination System, requiring
a permit for the “discharge of any pollutant” into the navigable waters of the
United States, 33 U.S.C. § 1342(a).
The triggering statutory term here is
not the word “discharge” alone, but “discharge of a pollutant,” a phrase made
narrower by its specific definition requiring an “addition” of a pollutant to
the water. § 1362(12).
* * * Miccosukee was * * * concerned only with whether an
“addition” had been made (phosphorous being the substance in issue) as required
by the definition of the phrase “discharge of a pollutant”; it did not matter
under § 402 whether pumping the water produced a discharge without any
addition. In sum, the understanding that
something must be added in order to implicate § 402 does not explain what suffices
for a discharge under § 401.
C
Warren’s third argument for avoiding the common
meaning of “discharge” relies on the Act’s legislative history, but we think
that if the history means anything it actually goes against Warren's position. Warren suggests that the word “includes” in
the definition of “discharge” should not be read with any spacious connotation,
because the word was simply left on the books inadvertently after a failed
attempt to deal specifically with “thermal discharges.” * * *
This is what might be called a lawyer’s argument. We will assume that Warren is entirely correct
about the impetus behind the failed attempt to rework the scope of pollutant
discharge under § 402. It is simply
speculation, though, to say that the word “includes” was left in the
description of a “discharge” by mere inattention, and for reasons given in Part
IV of this opinion it is implausible speculation at that. * * *
Warren’s theory, moreover, has the unintended
consequence of underscoring that Congress probably distinguished the terms
“discharge” and “discharge of pollutants” deliberately, in order to use them in
separate places and to separate ends.
Warren hypothesizes that Congress attempted to tinker with the
definition of “discharge” because it wanted to subject thermal discharges to
the requirements of § 401, but not § 402. But this assumption about Congress’s motives
only confirms the point that when Congress fine-tunes its statutory
definitions, it tends to do so with a purpose in mind.
IV
Warren’s arguments against reading the word
“discharge” in its common sense fail on their own terms.
They also miss the forest for the trees.
Congress passed the Clean Water Act to “restore and
maintain the chemical, physical, and biological integrity of the Nation's
waters,” 33 U.S.C. § 1251(a);
see also PUD No. 1, 511 U.S., at
714, the “national goal” being to achieve “water quality which
provides for the protection and propagation of fish, shellfish, and wildlife
and provides for recreation in and on the water.” 33 U.S.C. § 1251(a)(2).
To do this, the Act does not stop at
controlling the “addition of pollutants,” but deals with “pollution” generally,
see § 1251(b),
which Congress defined to mean “the man-made or man-induced alteration of the
chemical, physical, biological, and radiological integrity of water.” § 1362(19).
The alteration of water quality as thus defined is a
risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause
changes in the movement, flow, and circulation of a river . . . caus[ing] a river to absorb less
oxygen and to be less passable by boaters and fish.” And several amici
alert us to the chemical modification caused by the dams, with “immediate
impact on aquatic organisms, which of course rely on dissolved oxygen in water
to breathe.” Brief for Trout Unlimited
et al. as Amici Curiae 13; see also, e.g.,
Brief for National Wildlife Federation et al. as Amici
Curiae 6 (explaining that when air and water mix in a turbine, nitrogen
dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine
Department of Environmental Protection that led to this appeal:
“The record in this case demonstrates that Warren’s dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river.”
In re S.D. Warren Co., Maine Board of
Environmental Protection (2003), in App. to Pet. for Cert. A-49.
Changes in the river like these fall within a State’s
legitimate legislative business, and the Clean Water Act provides for a system
that respects the States’ concerns. See 33 U.S.C. § 1251(b)
(“It is the policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce, and eliminate
pollution”); § 1256(a) (federal funds for state efforts to prevent pollution); see
also § 1370 (States may impose standards on the discharge of pollutants that
are stricter than federal ones).
State certifications under § 401 are essential in the
scheme to preserve state authority to address the broad range of pollution, as
Senator Muskie explained on the floor when what is
now § 401 was first proposed:
“No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.”
116 Cong. Rec. 8984 (1970).
These are the very reasons that Congress provided the
States with power to enforce “any other appropriate requirement of State law,” 33 U.S.C. § 1341(d),
by imposing conditions on federal licenses for activities that may result in a
discharge, ibid.
Reading § 401 to give “discharge” its
common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of
Maine is therefore affirmed.
It is so ordered.
NOTES
1. Supreme Court Environmental Unanimity. S.D. Warren is interesting, among other things, for the fact that it is one of the few 9-0 environmental decisions that the Supreme Court has issued. Compare this decision to Solid Waste Agency and Rapanos, both of which involved the extent of federal jurisdiction over wetlands. Why did those decisions split the Supreme Court, compared to S.D. Warren? Is the meaning of “discharge” and its application to hydroelectric dams really so clear? Why would Justice Scalia nevertheless refuse to join Part III.C. of the decision?
2. Sections 401 and 402. How did the S.D. Warren Court distinguish sections 401 and 402? What element is need for Clean Water Act jurisdiction under section 402 that is not needed for section 401 to apply? Is that distinction important? Does the S.D. Warren decision undermine the Ninth Circuit’s conclusion in Oregon Natural Desert Association that section 401 does not apply to federally licensed or permitted nonpoint sources of pollution? Why or why not?
Re-read footnote 5. How does the Supreme Court appear to view the “legal transformation” theory of “additions”? Why is its disagreement with the Maine Supreme Judicial Court on this point important for section 401? What are the implications of this footnote for section 402?
3. Construing “Discharge.” What tools of statutory construction did the Supreme Court use to interpret the word “discharge”? Was Chevron deference relevant? Why or why not? Why was S.D. Warren’s use of a nositur a sociis argument inappropriate, according to the Court? Do you agree? How do S.D. Warren and the Court use legislative history?
4. Federalism and the Broader Purposes of the Clean Water Act. How is federalism relevant to the Supreme Court’s interpretation of “discharge”? Section 401 is one of the state-empowering provisions of the Clean Water Act. What does Part IV suggest about the potential breadth of section 401? How does this view of the states’ roles in protecting water quality comport with the Court’s decision in Solid Waste Agency? In Rapanos?
Consider
the following. Riverside Bayview, Solid Waste Agency, and Rapanos all involved the section 404 “dredge
and fill” permit program, which, as we have noted, is still implemented almost
entirely by the U.S. Army Corps of Engineers, a federal agency. PUD No. 1 of Jefferson County and S.D.
Warren, in constrast, focused on section 401,
which empowers the states to protect water quality at the expense of federal
power. How is the Supreme Court likely
to treat federalism considerations when it deals with the scope of section 402,
which (like section 404) is a federal permit program overseen by a federal
agency, the EPA, but which (more like section 401) is for most practical
purposes administered by the states to protect water quality within their
borders?
* Justice
SCALIA joins all but Part III-C of this opinion.
5 We note that the Supreme Judicial Court of Maine accepted the assertion that “[a]n ‘addition’ is the fundamental characteristic of any discharge.” 868 A.2d 210, 215. It then held that Warren’s dams add to the Presumpscot River because the water “los[es its] status as waters of the United States” when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A.2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Thus, though we affirm the Maine judgment, we do so on different reasoning.